Matthew A. BahlVerrill Dana, LLP

mbahl@verrilldana.comwww.hrlawupdate.com

May 18, 2012

SOCIAL MEDIA BREAKFAST MAINE:HOW TO HANDLE SOCIAL MEDIA IN THE

MODERN WORKPLACE

May 18, 2012

What would you have done?

• Employee jokes on Facebook page that your company’s average IQ would increase if a bomb were dropped on one your corporate offices.

• Employee blogs about his job and includes company financial and new product information.

What would you have done?

• After an interview, your top applicant Tweets that he thought the your company’s benefit package was “weak sauce.”

• A large group of employees create a web-site and post sexual and offensive comments about a coworker. The web-site also contains numerous pictures showing your employees drunk, using illicit drugs, and “hooking up.”

What would you have done?

• Your client posts a YouTube video of your employee criticizing the client.

• Employee posts a YouTube video criticizing your top competitor.

What We’re Going To Cover

• LIFE CYCLE OF AN EMPLOYEE– Pre-employment

• Using social media in the hiring process

– During employment• Social media policies and enforcement

– Post-employment• Non-compete/non-solicitation• Confidentiality and trade secrets

• Practical Tips

Using Social Media In The Hiring Process: The Legal Landscape

• FCRA• SCA• NLRA• USERRA• Title VII• MHRA• ADA• GINA• Off-Duty Conduct Laws• New state privacy laws• Negligent hiring

Why Use Social Media In The Hiring Process

• Bad hires can be expensive.

• 45% of employers surveyed by CareerBuilder used social media to research job applicants.

• Of those surveyed 35% decided not to hire someone because of online posting.

Practical Tips For Using Social Media In The Hiring Process

• Tip 1: Have a social media hiring policy and follow it.

• Tip 2: Notify applicants, in writing, about your company’s use of social media in the hiring process and give them a chance to respond to negative information.

• Tip 3: Don’t have decision makers conduct social media searches

• Tip 4: Ensure employment decisions are based on lawful, verified information.

• Tip 5: Follow best practices in identifying legitimate, nondiscriminatory reasons for hiring decisions.

Social Media In The Workplace: The Legal Landscape

• FMLA• SCA• NLRA• USERRA• Title VII• MHRA• MWPA• ADA• GINA• FTC• SEC• Off-Duty Conduct Laws• New state privacy laws• Negligent retention

Social Media In The Workplace: Employee Productivity

• Studies show that Facebook users get lower grades in school AND in the workplace.

• Likewise, social media proponents have published studies that social media use can INCREASE productivity.

• Choice for employers.

Social Media In The Workplace: Employer’s Choice

• If you choose to allow social media use at work, there should be guidance as to:– Who – company clients, coworkers, vendors?– What – what is confidential information?– When – limitations?– Why – how are company goals met through use of

social media? How does social media fit into your business plan?

– How – importance of professionalism

Social Media In The Workplace: Company Security

• Security concerns:– Leaks– Hackers

• SmartPhones– Security features– Walking away with

confidential information

Social Media In The Workplace:Protected Concerted Activity

• Section 7 of the NLRA• NLRB has brought several petitions over company firing

of employees for Facebook posts. Important issues:– Employee posting critical of company management. When is it

okay?– Other employees join the online discussion and were likewise

critical of management. Is this important?– Company policies prohibiting or limiting employees’ ability to

discuss the company online.

• Two “guidance memos” discussing what is and is not a lawful policy.

Practical Tips: Social Media Policies

• Do you want to police social media use?

• Don’t over policy your handbook.

• Avoid blanket non-disparagement or prohibitions in social media policies.

Social Media After The Workplace: The Legal Landscape

• State tort and defamation laws

• UTSA

• Contract Law– Non-compete– Non-solicitation

QUESTIONS